Passion for Equality

The owner of a Colorado cake shop declined to design and bake a wedding cake for a same-sex couple saying that baking such a cake would violate his religious convictions.

Tocqueville believed, in Patrick Deneen’s words, that democracies inevitably seek to do away with “any apparent differences” among people—“material, social, or personal.” No distinctions are to be tolerated. In fact, Tocqueville wrote that democratic societies have an inevitable tendency toward pantheism, since, in the end, even a distinction between Creator and created becomes intolerable.

 

At the close of its term last month, the Supreme Court granted certiorari in Masterpiece Cakeshop, one of the handful of same-sex wedding cases that have been percolating in the lower courts for the past few years. In the case, a Colorado cake shop declined to design and bake a wedding cake for a same-sex couple. Designing and baking such a cake, the shop’s owner said, would violate his religious convictions.

The Colorado Civil Rights Commission ruled that the shop owner’s refusal violated the state’s public accommodation law, which prohibits discrimination on the basis of sexual orientation. The shop owner argues that he doesn’t discriminate on the basis of sexual orientation—he is happy to sell cakes to gays and lesbians—but that requiring him to design and bake a cake for a same-sex wedding would violate his constitutional rights, specifically, his free speech rights (by compelling him to express approval for conduct he disapproves) and his free exercise rights (by requiring him to engage in conduct that violates his religious convictions).

The lower courts have not been sympathetic to claims like the shop owner’s. Earlier this year, in Arlene’s Flowers, the Washington Supreme Court unanimously rejected an appeal by a florist who declined to sell wedding flowers to a same-sex couple because of her religious convictions. A few years ago, in Elane Photography, the New Mexico Supreme Court rejected an appeal from a wedding photographer who declined to work at a same-sex wedding.

The US Supreme Court has not yet ruled on the question, and Masterpiece Cakeshop will no doubt be a close decision. The relevant case law is sufficiently complicated and indeterminate to allow a holding either for or against the shop owner. Even Employment Division v. Smith, the famous 1990 decision that held there is no constitutional right to a religious accommodation in most circumstances, is full of exceptions and tangles. Whatever legal formulas the Court uses to explain itself, it seems to me, its judgments in religious accommodation cases depend more on intuitions than on doctrine—and the intuitions themselves depend, fundamentally, on what seems plausible in the wider culture.

In this regard, readers may be interested in a recent experience I had in my law and religion class. For the past few years, I have covered the same-sex wedding cases, but I have always had trouble getting students to see both sides of the argument. The students are so committed to the rightness of same-sex marriage that they don’t understand why anyone could in good faith object to participating in one—or, least, they’re not comfortable saying so in class. So, this year, I decided to change the hypothetical, to give the students a situation where the objector’s position might seem more plausible.

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